relationships between the branches Flashcards
state the topics within relations between the branches
- the supreme court: its interactions and influence and policy processes
- the relationship between the executive and parliament
- the aims, role and impact of the European union on the UK government
- the location of sovereignty in the UK political system
define judiciary
The judiciary refers to a branch of government that enforces the law and interprets the meaning of laws, including constitutional law. It refers to all of the judges and courts that operate in the UK which dispense justice.
what functions do the senior judiciary share
- dispensing justice
- making law
- interpretation of the law
- establishing case law
- declaring common law
- conducting judicial reviews
- holding public inquiries
explain how the senior judiciary dispense justice
Although, the senior judiciary are of not direct political importance, the lower courts have a vital role in ensuring legal justice is delivered. This implies that all citizens should be treated equally under the law and that the law is applied to them in a fair way, as the spirit intended - a principle known as a formal equality
All courts at all levels have the task of ensuring that the rule of law is maintained. However, decisions as to whether the rule of law has been abused is left to the higher courts particularly the SC.
explain how the senior judiciary is making law
Parliament is the supreme authority that will make and enact but there are instances when not all laws are clear, nor it is clear by parliament how they should be applied in particular cases. This is why the supreme court and judges will make some judge-made law which is not made by parliament and is common law or equity, that is unwritten law. Therefore, judges must declare the meaning of such law if they believe it exists
explain how the senior judiciary will interpret the law
All lawyers and judges to have to interpret the meaning of the law but it is the three top levels of the judiciary that concentrate on the function.
Drafters of legislation and parliamentary legislative committees may have tried to make the law easy to understand but the precise meaning of a statute (law) is not always clear, there will always be circumstances where those in court come into conflict over what the law is supposed to mean. In such cases, it is for judges to interpret the meaning of law.
Interpretation of the law, is the final stage of the legislative process. Judicial precedents are very important as once a senior judge has interpreted the law in a certain way and if this is a new interpretation the law must be interpreted in the certain way if there is new interpretation outlined and all judges must follow this same interpretation. A judicial precedent can only be changed or overturned by a higher-level court.
how does the supreme court establish case law
As with interpretations of statute law (made by parliament) it is not always clear how the existing laws are to be applied in a particular case. It is for judges to decide this.
When such a decision is made, it is expected that any similar cases that arise in the future should be dealt in the same way. Here the concept of judicial precedent also applies as once the application of law is established in different types of cases as precedent is established which is also known as case law
how does the supreme court declare common law
Common law is established by judges to help establish how to apply the law. Examples of common law include laws which are enforced because they have always been rather than because parliament has passed them including: murder, manslaughter, common assault etc and occasionally the rights of citizens. However, sometimes there may be problems in settling disputes for which there is no relevant statute and no clear common law. When this happens a judge must take evidence and decide what the common law is. This is the third example of ‘judge made law’
How does the supreme court conduct judicial reviews?
Citizens or groups may feel that they have been mistreated by a public body, usually part of the state at central or local level. When this happens there is an opportunity to seek a judicial review by the court and the review will examine whether the citizens claims are justified.
The purpose of the review is to consider whether there has been any wrongdoing and may involved either compensation or simply a reversal of a decision.
The quantity of the cases involving judicial review has grown dramatically since the 1960s.
Judicial review is a critical role
Judicial review has a critical role in helping to achieve two democratic objectives.
What are they and how do they achieve these objectives?
Judicial review performs two democratic objectives:
- to ensure that government does not overstep its powers
- to assert the rights of citizens: the courts were given an enormous boost in this area when the human rights act 1998 came into force in 2000. This meant that the courts could review actions by government and public bodies that might contravene the ECHR. At the same time, the freedom of information act which came into force in 2005, gives citizens and the courts a right to see a much wider range of official documents than before.
How many cases through judicial review was heard in 2014?
In 2014, 4,062 cases were heard of which, 36% were successful and led to a change in a decision by a public body. Since 2014, the number has settled at approx., 4,000 per year.
explain how judges hold public inquiries
Although it is not necessarily always the case, judges are often called upon to conduct public inquiries into matters widespread public concern. The reason for using judges is twofold:
- as experienced judges, they are used to handling such issues
- they are independent of government so that an inquiry led by a judge can be seen to be politically neutral
state examples of judge-led public inquiries
- Macpherson Inquiry 1999: To examine the handling by the police in the case of the murder of black teenager Stephen Lawrence
- Hutton inquiry 2003: Into the circumstances surrounding the apparent suicide of the civil servant David Kelly, a weapons expert following questions over his role in the report on Saddam Hussein’s weapons of mass destruction in Iraq
- Leveson Inquiry 2012: Into the conduct of the press following allegations of widespread ‘phone hacking’ by journalists in pursuit of stones
- Gibson Inquiry 2013: Into allegations that UK intelligence forces were involved with US forces in the torture of terrorist suspects
What is judicial review?
What is judicial review?
It is a means of questioning the lawfulness of decisions made by public bodies, such as local councils, government departments, police forces or health authorities. Cases usually start in the administrative division of the high court and involve a claimant alleging that an official or minister made a mistake in law
Why has access to judicial review decreased over the years?
The Bar Council points to the fact that applications for judicial review fell by 44% between 2015 and the end of September 2019.
Access to judicial review was significantly restricted by the coalition government in 2013 when it tightened the right to use legal aid for challenges. It also raised court fees. The justice secretary at the time, Chris Grayling, said he was determined to drive out “meritless applications” which were used as a “cheap delaying tactic”.
Why is judicial review important in relation to democracy?
- Judicial Review is a vital part of the checks and balances necessary to protect people from powerful institutions. It underpins the rule of law. (Simon Davis - president of law society)
- Judicial review is a hugely important tool in a democratic society by which decisions of public authorities, including government, are subject to legal scrutiny. - (Amanda Pinto - chair of bar council)
“Far from being a mark of dysfunction, judicial review is an appropriate check on decision-making, of which a nation should be proud.” - Amanda
Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.
Judicial review does more than give victims a voice, it can also give them justice. Susan Nicholson was tragically murdered by her partner, Robert Trigg, in 2011, though an inquest initially ruled the death accidental. When it was later revealed that Trigg had a previous partner who had died in similar circumstances and had a significant history of violence against women, Nicholson’s parents used judicial review to argue for an inquest into her death, which ultimately led to achieving justice.
state an example that illustrates the importance of judicial review
judicial review forced the government in 2022 to stop deportation flights of people to jamaica.
After a court judgment forced the government to remove more than half the people from the flight list. The flight to Jamaica took off early on Tuesday with 17 deportees onboard.
Downing Street said 25 people were prevented from being deported as a result of the court ruling. Originally about 50 had been expected to be onboard.
On Monday night a court of appeal judge ordered the Home Office not to carry out the scheduled deportation amid concerns that mobile phone outages had prevented detainees from having access to legal advice.
Lady Justice Simler said those detainees should not be removed unless the Home Office was satisfied they “had access to a functioning non-O2 Sim card on or before 3 February”.
The action was brought because there had been a problem with the O2 phone network in the Heathrow detention centres since last month, meaning many detainees had been unable to exercise their legal right to contact their lawyers.
This incident highlights the importance of judicial review as the Westminster bubble’s view of people trying to halt this flight with judicial reviews makes the case perfectly to the public about why such a review is needed to act as a check on the governments actions and conduct
How and why has the current conservative government tried to weaken the power of judicial review and courts
The government plans to restrict the use of judicial review in an obvious attempt to avoid accountability. Such attempts to consolidate power are profoundly un-conservative and forget that, in a society governed by the rule of law, the government does not always get its way.
Plans to restrict judicial review are certainly not new. In 2012, we saw David Cameron try to restrict its use by raising fees and imposing tighter time limits on applications. And in 2000, Tony Blair’s government included in the law a clause to prevent the investigatory powers tribunal from being looked at by judge
The Conservative manifesto had promised: “We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.” In other words the government wishes the reduce the role of judicial review to carry out actions such as deportation flights.
The Liberal Democrats condemned Dominic Cummings, Johnson’s chief adviser, and his Tory colleagues, accusing them of acting like “despots” with regard to their attacks on the courts.
Sir Ed Davey, the Liberal Democrats leader, said: “Dominic Cummings seems to believe that he, Boris Johnson and Tory ministers are above the law. They are not. When ministers act outside of the bounds of the law, people must be able to hold them to account in the courts.
“These Tory attacks on our courts, judicial review and the Human Rights Act are all designed to weaken ordinary people and enable ministers to act with impunity. They are the actions of despots, not democrats.”
How was the supreme court created and changed?
The supreme court is a relatively new court which previously was in the HOL as the highest court of the law as 12 law lords would deliver judgements in the house of lords appellate committees.
However, with the introduction of the SC, the supreme court became separate and no longer sits in the HOL leading to a clear separation of powers.
Therefore, as part of the Blair government’s commitment to modernising the British constitution, the constitutional reform act 2005 was passed. The central feature of the act was the establishment of the SC.
What did the constitutional reform act 2005 do in relation to the supreme court
Blair government’s commitment to modernising the British constitution, the constitutional reform act 2005 was passed. The central feature of the act was the establishment of the SC.
This act removed the law lords from the HOL and in its place established the supreme court which came into force in 2009.
It was mainly designed to reaffirm and guarantee the independence of the judiciary in the UK (free from political influence)
explain a summary of supreme court
- The Supreme court stands at the apex of the legal system it is the highest court in the trial
- It is an appellate court, meaning that it hears appeals from the lower courts in England, Wales, Scotland and Northern Ireland, usually on constitutional issues relating to the Human Rights Act
- The Supreme court became active in 2009
state the main provisions / functions of the SC
- The lord chancellor was no longer the heard of the UK judiciary as had been the case for centuries. This was now the lord chief justice a non-political figure and a senior judge. The lord chief justice is also known as the president of the courts of England and Wales
- The position of lord chancellor still exists and the holder combines the position with that of justice secretary in the cabinet. However, s/he is no longer an active member of the judiciary
- The lord chancellor was no longer to be the speaker of the HOL and ceases to sit in the HOL
- The SC was established. It contains 12 senior judges known as the justice of the SC
- The head of the SC is known as the president of the SC
- When there is a vacancy in the court, a selection commission is established, consisting of a number of senior law officers from the whole of the UK. The commission recommends a candidate to the lord chancellor
- In theory, the lord chancellor can question whether a candidate is suitable but s/he does not have an absolute veto
- The act reaffirmed the principle that a SC judge can only be removed by a vote in both houses of parliament and only for misconduct not as a result of their decisions. The salary of the judges is also guaranteed. This means they have security of both tenure and salary
The independence of the judiciary and the SC in particular were finally codified in law. Furthermore, the lord chancellor was charged with the task of guaranteeing and maintaining the independence of the sc and the rest of the judiciary from political or public pressure.
explain the role and composition of the supreme court
The SC is made up of 12 of the country’s most senior judges, known as Justices of the SC. The membership of the SC is determined by a five-member Selection Commission made up of the most senior judges in the UK. When a vacancy arises, they draw up a list of suitable candidates, all of whom must have either two years’ experience as a senior judge or 15 years as a legal practitioner. Their nominations are then passed to the justice secretary for approval, who has one opportunity to reject a nomination. Once agreed, the PM must be ‘notified’ who will then recommend the candidate to the monarch who they will ask to make the appointment.
The court is known as the highest appeal court in the country. During the UK’s membership of the European Union, cases could be appealed to the European Court of Justice, but this will no longer apply after the UK leaves the EU. Cases concerning human rights can be taken to the European Court of Human Rights (ECHR) in Strasbourg, France, though there is no guarantee that the UK government or Parliament will obey its judgements.
The SC does not hear any cases in ‘the first instance’. This means that the cases it hears have already been heard in a lower court. The court will only hear cases it believes are important.
state the reasons why cases may be sent to the supreme court
The reasons why the SC may allow a case to be brought to it include the following:
- It may be an important judicial review concerning the government or some other important body such as a school, newspaper or the NHS. The court may need to establish what legal powers such bodies have.
- The case would have implications for other citizens and bodies – in other words, if it may create an important precedent to be followed elsewhere.
- It involves an important interpretation of the law. It may be that lower courts have been unable to make a judgement about the meaning of law. The SC will examine what Parliament’s intention was when it originally passed the law.
- A key issue of human rights may be at stake.
Not all the SC judges hear cases; there is normally a selection of five (though as many as 11 may sit on a key case). In such cases the judgement will need a majority (three) of the judges to agree. Once the case has been decided, the law is firmly established. Only the ECHR might seek to reverse the judgement if human rights are at stake. Judgements and the reasons for them are published.
what is meant by judicial precedent?
Judicial precedent refers to when a senior judge establishes a new interpretation of law, which means for all cases with the same material facts to follow this interpretation.
Judicial precedent also refers to stare decisis ‘let the decision stand’
It is vital that Justices of the SC are independent of the legislature and the executive. The rule of law depends on judges not being influenced by the government. Instead the decisions that they reach should be entirely based on the principles of justice. Judges are expected to be neutral, which means that their judgements should never be influenced by any social or political pressure.
Explain why some would criticise the supreme court in relation to its neutrality and independence
Critics of the SCs ability to provide justice argue that its membership is so privileged that the decisions it makes are unlikely to reflect the way in which the law impacts on modern society. Most Justices of the SC have been privately educated and attended Oxford or Cambridge university, and so these rarefied experiences could make them ill-suited to interpreting the law in a contemporary setting. In short, the privileges and prejudices of their class may hinder the Justices from being neutral. Men also dominate the SC. In 2019, for example, there were just three female justices on it, further making it an unrepresentative body.
That the members are usually from such an elite background has traditionally led to claims that they tend to favour the Establishment. In 1977, John Griffith, a socialist academic, argued in ‘The Politics of the Judiciary’ that socially and politically conservative judges always favour the status quo. The judiciary was seen largely as a conservative body whose members came from the same social and political background as members of successive Conservative governments. One of the most famous judges of the (20th, Lord Denning (1899-1999) sided with the government on a number of occasions. In the Hosenball case (1977), for example, he boldy asserted, ‘In some parts of the world national security has been used as an excuse for all sorts of infringements of individual liberty. But not in England.’
In relation to criticisms of the supreme court how does the government still retain political influence which affects the neutrality and independence of the court?
The government also retains some political influence over the appointment of Justices of the SC. The Constitutional Reform Act 2005 merged the position of Lord Chancellor with that of justice secretary. The justice secretary, who does not need to have a legal background, is a member of the cabinet. Despite this, the selection committee for new Justices of the SC has to pass their recommendations to the justice secretary, who can request further information and retains the right to reject a nominee. This power would only be used in exceptional circumstances and only one nomination can be rejected, but it does show how there is not a complete separation of powers in the UK. Once the justice secretary is satisfied then the PM will ask the monarch to make the appointment.
The high-profile involvement of the SC in cases concerning the government also risks it being pulled into major political disputes, which could compromise its neutrality. This was the case over Brexit, as well as in major decisions involving the interpretation of human rights legislation.
In what ways can the supreme court claim to be independent and neutral?
- Opened in 2009, the SC is housed in Middlesex Guildhall and directly faces Parliament on Westminster Square. This physical separation from Parliament, is in itself an important statement of the court’s political independence.
- A barrister or a solicitor may be permitted to be a member of a political party, but once appointed, a judge, must abandon any political associations or ambitions.
- The salaries of judges are not determined by Parliament. Instead the government follows the recommendations of the Senior Salaries Review Body and payment is made directly from the Consolidated Fund. This mechanism ensures that no government could seek to influence the judiciary through providing it with financial incentives to look favourably on its policies.
- Since the Act of Settlement in 1701 which established the Protestant succession to the Crown, a senior judge can only be removed by a resolution passed by both houses of Parliament. This means that they have, in effect, security of tenure and so cannot be removed from office by the government. As a result, judges can act according to how they think the law should be interpreted without fearing any consequence of loss of office.
- The Constitutional Reform Act 2005 further promoted the independence of the senior judiciary by removing the Law Lords from the Appellate Committee of the HoL and establishing the SC as a separate institution from the legislature.
- The Constitutional Reform Act 2005 was also designed to make appointments to the judiciary more transparent. Previously, the Lord Chancellor had advised the PM through ‘secret soundings’ of senior judges. This, it could be argued, led to a self-perpetuating socially elitist judiciary. In its place a new Judicial Appointments Commission was established, which selects judges on their merit and good character, as well as considering the importance of encouraging diversity within the judiciary.
- Appointments to the SC are decided by a specifically summoned five-person selection committee comprising the Lord President of the SC, a senior judge and representatives of the Judicial Appointments Commission. If candidates for the SC are deemed to be of equal merit, then the selection committee may ‘prefer one candidate over the over for the purpose of increasing diversity within the group of persons who are judges in the court.’ This is in total contrast to the US, where the president appoints the membership of the SC with the consent of the Senate – this influence makes the US SC a much more politically partisan body than the UK SC.
- Since court cases are generally open to the public and judgements are in the public domain, any prejudice or bias shown by a judge would be quickly publicised in the media.
- When a case is being heard, it is said to be ‘sub-judice’. This means that Parliament cannot express an opinion as this would breach the separation of powers and undermine judicial independence. If a member of the legislature or executive did express an opinion, this would be contempt of court.
Does the supreme court always rule in favour of the government or challenge the government?
The claim that socially conservative judges are likely to support the government may have once been true. Judges were not expected to challenge the authority of the government in any significant way. They saw themselves as servants of the state rather than an equal partner. However, this relationship has changed considerably. Recent cases suggest that the SC is prepared to confront Parliament and the executive. For example, in the Gina Miller case, it declared that the government did not have the authority to begin the process of withdrawing from the EU. In one of the last rulings of the Appellate Court in the HoL, involving the possible deportation to Jordan of a radical Islamist, the principle of judicial neutrality was upheld. Labour home secretary David Blunkett (2001-04) was especially critical of senior judges for stopping him limiting the rights of asylum seekers: ‘I just want judges that live in the real world as the rest of us.’
What factors has affected the changing relationship between the judiciary/SC and the executive?
The changing relationship between the judiciary generally and specifically the SC and the executive, is a result of the following factors:
- the growth of judicial review since the 1960s
- the rise of liberal ideology in the UK from the 1960s onwards, including the growth of what is sometimes known as the ‘rights culture’
- the appointment of a series of liberal-minded senior judges since the 1990s
- the passage of the Human Rights Act in 1998, giving judges a codified statement of human rights, which could be used to protect citizens against state power
- the Constitutional Reform Act of 2005, which improved the independence of the judiciary in general.
Therefore, the UK judiciary no longer sees itself as subordinate to the executive. Judges are no longer reluctant to challenge state power and to assert the rights of citizens. In short, the judiciary has become something of a counterbalance to executive power. On the other hand, government does have a claim to greater authority than the judiciary. As long as it can control its majority in Parliament, it can use the sovereignty of Parliament to reverse any decisions made by the judiciary. However much they may protest, the judges must by law, enforce the will of Parliament.
How does the supreme court influence the executive and parliament and vice versa
Parliament in the UK is sovereign. This is a fundamental feature of the country’s constitutional arrangements. Recent cases suggest that the SC is prepared to confront Parliament and the executive, however it remains that the judiciary is a subordinate body. The judges are simply not in a position to defy the will of the UK Parliament. Furthermore, the UK Parliament is omnicompetent. This means it is able to do whatever it wants, to pass any law and to expect to have that law implemented and enforced. No matter how abhorrent or undesirable the judges may feel a law is, they must enforce it. They may pass an opinion on the law and they may recommend change, but that is as far as it goes.
Judges have to take into account the wishes of Parliament when interpreting law. When determining the real meaning of statue law, judges will look back at the original proceedings in order to establish what Parliament intended. It is not for the judges to decide what is desirable, but only what Parliament thought was desirable. Of courses, if judges make a ruling of which government and/or Parliament does not approve, Parliament always has the option of amending a statute or passing a new one in order to correct what the judges have done. Such a circumstance occurred in 2010. The SC ruled that the government did not have the power to freeze the bank assets of terrorist suspects. PM Brown was incensed but had to accept the judgement temporarily. In the event, though, a new statute was passed later the same year (the Terrorist Asset-Freezing Act 2010) granting such a power to the government. The will of the Parliament prevailed. The SC could do nothing about it.
Furthermore, since the UK does not have a codified constitution, the SC cannot refer to a higher constitutional law when delivering its judgements. This makes the UK’s SC less powerful than the SCs of countries which have a codified constitution.
State the four important constitutional and political functions that the supreme court performs
- Determining the meaning of the law, so setting judicial precedents which must be followed in future cases.
- Deciding whether a public body, including the government, has acted beyond its authority.
- Establishing where sovereignty is located within the UK.
- Declaring when government has acted in defiance of the Human Rights Act.
explain the supreme court function of determining the meaning of the law
Determining the meaning of the law:
As the final court of appeal, decisions in the SC carry greater weight in developing the meaning of the law. In R V Jogee (2016), the SC overturned the principle of ‘joint enterprise’, which was established in common law whereby those who were part of a group which incited a murder could be convicted of the crime in the same way as the one who had actually done the killing. Instead, the SC stated that there had to be ‘intent to kill’ shown if members of a group were all held guilty of murder. This judgement opened the door to many similar appeals by convicted murderers in joint enterprise cases. It also means that judges in similar cases will have to be more careful in deciding whether an accomplice should be found guilty of a crime if someone else actually committed it. In a number of cases, the SC has also had to determine the extent to which the Human Rights Act impacts on the individual’s relationship with the state.
explain the supreme court function of deciding whether a public body has acted beyond its authority (ultra vires)
Deciding whether a public body has acted beyond its authority:
During a judicial review of the actions of a public body, the SC can decide whether the body has acted beyond its authority, ‘ultra vires’. For example, in 2016, the SC stated that when he was justice secretary, Chris Grayling had acted ultra vires when he amended the Legal Aid Act to restrict civil legal aid to people who had lived continuously abroad for 12 months. The SC stated that a decision as important as this should have been debated in Parliament and so Grayling had not the authority to introduce it through secondary legislation.
Explain the supreme court function of establishing where sovereignty is located within the UK
Establishing where sovereignty is located within the UK:
Given how the location of sovereignty can be disputed, the role of the SC in establishing where sovereign power lies is crucial. This was notably demonstrated in the Gina Miler case (2017):
R.Miller v Secretary of State for Exiting the European Union (2017)
The Gina Miller case demonstrates the constitutional significance of the supreme court. Following the EU referendum on 23 june 2016, the government claimed that it could begin the process of leaving the European union through the exercise of the royal prerogative. However on 24th january 2017, the supreme court by a majority of 8-3, upheld an earlier decision taken in the high court which stated that the government did not have the authority to do this. This was because parliament in 1972 had enacted the legislation which had taken the UK into the EU and so it was parliament’s responsibility to enact legislation to remove the Uk from membership of the EU. In addition, since the withdrawal would remove certain legal rights from UK citizens this could not be done without the consent of parliament.
As the president of the supreme court, Lord Neuberger stated in the supreme court’s judgement:
‘Withdrawal effects a fundamental change by cutting off the source of EU law, as well as changing legal rights… The UK’s constitutional arrangements require such changes to be clearly authorised by parliament’
The fact that the high court and then the supreme court had both declared that parliament must consent to the government opening negotiations to withdraw from the EU was seen by some supporters of Brexit as an attempt to subvert the result of the referendum. The daily mail ran a highly controversial front cover condemning as ‘enemies of the people’ the high court judges who stated that parliament must be consulted. Neither court was doing this. Instead, the Gina miller case clarified the following vital constitutional principles:
- The supreme court can determine the occasions on which the government can deploy the royal prerogative
- the government must consult parliament if it seeks to abolish rights which parliament has already bestowed
- claims by the government that the vote to leave the Eu in 2016 referendum gave the government the right to begin the process was illegal, since the result of a referendum is legally non-binding
The way in which the Miller case upheld parliamentary sovereignty against claims that the result of a referendum could empower the government to ignore parliament makes it one of the most significant constitutional decisions of the recent years
what vital constitutional principles did the gina miller case clarify?
Gina miller case clarified the following vital constitutional principles:
- The supreme court can determine the occasions on which the government can deploy the royal prerogative
- the government must consult parliament if it seeks to abolish rights which parliament has already bestowed
- claims by the government that the vote to leave the Eu in 2016 referendum gave the government the right to begin the process was illegal, since the result of a referendum is legally non-binding
The way in which the Miller case upheld parliamentary sovereignty against claims that the result of a referendum could empower the government to ignore parliament makes it one of the most significant constitutional decisions of the recent years
explain the supreme court function of declaring when the government has acted in defiance of the human rights act
Declaring when government has acted in defiance of the Human Rights Act:
Due to the principle of parliamentary sovereignty, the judges cannot strike down an Act of Parliament. However, the Human Rights Act states that ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. As a result, there is the expectation that Parliament should legislate in accordance with the ECHR. If this is not possible then the judges can issue a formal statement of incompatibility, which will put significant pressure on the government to amend the law.
The Belmarsh case (2004) provides a classic example of this. In 2004, the Blair government used the powers given to it by the Anti-Terrorism Crime and Security Act 2001 to hold foreign terrorist suspects indefinitely without trial. The Law Lords declared that this was discriminatory according to the ECHR since British terrorist suspects were not being treated in the same way. The government accepted the ruling. However, soon after, Parliament legislated to introduce control orders, which enabled the government to monitor the whereabouts of foreign terrorist suspects in a different manner. This shows that, although a declaration of incompatibility can have significant moral influence, Parliament’s power to circumvent the judiciary is still great.
state FOR arguments for whether the supreme court is influential?
FOR ARGUEMENTS:
- The SC is the UK’s most senior court and final court of appeal.
- The Justices of the SC are the most senior judges in the UK and their interpretation of the law is final.
- If the SC declares a formal statement of incompatibility between an Act of Parliament and the ECHR, that will put significant political pressure on the government to amend the law.
- The SC also determines the location of sovereignty in the UK and can declare when a public body has acted illegally by acting beyond its authority (ultra vires).
State AGAINIST arguments for the question ‘is the supreme court influential’?
AGAINIST ARGUEMENTS
- Since the UK Parliament is legally sovereign, the SC cannot strike down an Act of Parliament.
- The SC cannot initiate cases. It only determines cases which are brought to it.
- The government could ignore a declaration of incompatibility.
- Although the SC interprets the meaning of the law, it is also bound by what the law states.
- Although the SC can quash the decision of a public body for acting beyond its authority, Parliament could then legislate to give that body the legal powers which it did not have before.
state the two key doctrines and principles that underpin the work of the sc
- rule of law
- judicial independence
- judicial neutrality
Explain the rule of law as a key doctrine and principle that underpins the work of the supreme court
THE RULE OF LAW:
The rule of law is a key doctrine of the UK constitution under which justice is guaranteed to all. Dicey saw the rule of law as one of the ‘twin pillars’ of the constitution, the other being parliamentary sovereignty. According to Dicey, the rule of law has three main strands:
- No one can be punished without trial: Although this makes sense in theory, it is not always maintained in practice e.g. terrorist suspects have been subject to a range of punishments, such as indefinite detention, control orders and freezing of their assets, under new measures passed since 2001.
- No one is above the law and all are subject to the same justice: A principle that should hold true in all liberal democracies, however some people have always been effectively above the law, including the monarch, foreign ambassadors and MPs.
- The general principles of the constitution result from judges’ decisions rather than parliamentary statute: While the decisions of judges (case law) help to define the UK’s constitutional arrangements, parliament remains sovereign and any legal precedent can be overturned by an Act of Parliament.
explain judicial independence as a key doctrine and principle of the supreme court
Judicial independence is a key principle of a democracy. The rule of law clearly demands that judges should operate with a high level of independence. It is important for a number of reasons:
- Judges need to be able to enforce the rule of law (equality under the law) without any external pressure.
- Judges hear cases of political importance involving the government itself, so they must not be subject to pressure from government if they are to give a neutral judgement.
- Judges must be able to protect the rights of citizens without fear of retribution if they defy government wishes.
- The judiciary is, in some cases, a key check on executive power.
state how judicial independence is upheld
Judicial independence is upheld in six key ways:
-‘Security of tenure’ enjoyed by judges:
Judges are appointed for life, limited by the requirement that they must retire by the age of 75 - so they cannot be dismissed if the government disagrees with their judgements. Members of the senior judiciary can only be removed as a result of impeachment proceedings requiring a vote in both chambers.
- Guaranteed salaries paid from the Consolidated Fund:
Judges cannot have their incomes threatened as a way of controlling them if they make decisions against government wishes – they are paid automatically from the Consolidated Fund.
-The offence of contempt of court: Under sub-judice rules, the media, ministers and other individuals are prevented from speaking out publicly during legal proceedings. This requirement is designed to ensure that justice is administered fairly, without undue pressure being bought to bear by politicians or the public in general.
- Growing separation of powers:
The downgrading of the post of Lord Chancellor and the creation of the SC enhanced the separation between the senior judiciary and other branches of the government. - Independent appointments system:
The Constitutional Reform Act (2005), saw the creation of the Judicial Appointments Commission (JAC) which is independent of government. This brought greater transparency to the process of appointments to avoid accusations of bias. - Training and experience of senior judges:
Most senior judges have served as barristers and come to the bench having achieved much status. It is argued that they are unlikely to defer to politicians or public opinion as this would compromise their judicial integrity
explain judicial neutrality as a key doctrine and principle of the SC
Judicial independence does not guarantee judicial neutrality because judges may still allow their personal views to influence the way they administer justice. However, the promise of a universal application of the rule of law requires that such bias is not allowed to influence their judicial decisions.
state and explain the four main ways judicial neutrality is achieved by the supreme court
- The relative anonymity of senior judges:
Until recently, judges rarely spoke out publicly on issues of law or public policy, and senior judges are still expected to avoid being drawn into open defence of their rulings or criticise government. - Restriction on political activity:
Although judges retain the right to vote, they are not supposed to campaign on behalf of a political party or pressure group or make public their political views. - Legal justifications of judgements:
Senior judges are expected to offer a legal explanation/justification for their decisions – this in itself, will limit personal bias. Decisions in the SC are published in full on the court’s official website, along with press summaries of significant cases. - High-level training:
Judges are part of a highly trained profession regulated by the Law Society. Senior judges have served for years as barristers and their elevation to the higher ranks of the judiciary reflects a belief that they are able to objectively deliver justice. Although the security of tenure enjoyed by senior judges makes it difficult to remove those whose neutrality is questioned, their performance could be monitored, and they could be moved away from serious cases.
What do critics argue about the neutrality, independence and rule of law of the supreme court?
Has the supreme court become political over the years?
Critics point to the way in which senior judges have been drawn into the political fray in recent years, with the suggestion that the passage of measures such as the Human Rights Act (1998) has resulted in the politicisation of the judiciary. However, while some see this increasing public profile and increased conflict between senior judges and politicians as a threat to judicial neutrality, it could just as easily be interpreted as evidence of growing independence and neutrality – not least because senior judges appear increasingly willing to take on the political establishment in defence of civil liberties.
explain the power of the supreme court in relation to the European union law and the supreme court
EUROPEAN UNION LAW AND THE SUPREME COURT:
Under the European Communities Act of 1972, the UK incorporated the Treaty of Rome into UK law. The effect of this, was to give European laws precedence over conflicting UK statutes, whether past of present. This meant that the UK government could be called to account at the European Court of Justice (ECJ). However, in the wake of the Factortame case (1990), UK courts have been able to suspend UK statutes that appear to be in violation of EU law, at least until the ECJ is able to make a final determination as to the legality of the statute in question. The case took its name from a Spanish-owned fishing company, Factortame Limited, which had challenged the legality of the Merchant Shipping Act 1988 under European law. (This power will disappear when the UK leaves the EU).
explain the supreme courts role with its various functions that protect the human rights of citizens
THE SC AND RIGHTS:
The SC has a role in controlling the power of the government and establishing the meaning of law alongside Parliament. But it has another role: this is the protection of rights in the UK. It does this together with the European Court of Human Rights in Strasbourg, France. It protects human rights by:
- Deciding whether a public body, including the government has acted beyond its authority, through cases of ultra vires. Here the SC will refer to both the European Convention on Human Rights, which is binding in the UK, and UK law, either by statute or common.
- An appeal may be based on a claim that the rule of law has not been applied in a case or a decision.
- In common law cases, the court examines whether a common law right has been abused.
explain what is the european court of human rights and its role
THE EUROPEAN COURT OF HUMAN RIGHTS:
Where there has possibly been a breach of the European Convention, the case may be taken to the European Court of Human Rights. This court, made up of judges from different European countries, will examine cases in the light of their interpretation of the meaning and scope of the convention. Their decision is final.
The table shows cases brought from the UK to the European Court of Human Rights in recent years:
- Shierby v UK (2009): Shireby (man) had been refused the full ‘widows benefit’ when his wife died, He claimed he was discriminated against on the grounds of his gender. - ECHR article concerned with article 14 (anti-discriminateion on the grounds of sex)
The appeal was allowed. Uk law effectively changed.
- McDonnell v UK (2014): Mcdonell was a northern ireland terrorist suspect who died in custody in 1996. There was a delay of 17 years before the inquest into his death - ECHR article concerned with article 2 (the right to life).
The appeal succeeded. McDonnell’s mother was awarded 18,000 in euros in cost and damages.
Voting rights for Uk prisoners (2015). A group of over 1,000 prisoners appealed against a ban on their right to vote. Article 3 (right to a free election).
The appeal was allowed but the UK government has refused to comply with the ruling, quoting the sovereignty of parliament.
Any judgement made by the European Court of Human Rights applies to all 47 countries that have signed up to European Convention of Human Rights, not just in the country from where the appeal was launched. So, the interpretations of law in the table, apply not only to the UK, but to all 47 countries which agree to the convention. Similarly, interpretations of law in cases from other countries apply in the UK, and all UK courts, including the SC. However, the UK can call upon the sovereignty of Parliament to defy the court. As long as the UK Parliament insists that one of its statutes should stand, even the European Court of Human Rights cannot enforce its judgment (this occurred when the UK refused to allow prisoners to vote in 2015, despite the court’s ruling to the contrary).
state cases brought form the Uk to the ECHR in recent years
The table shows cases brought from the UK to the European Court of Human Rights in recent years:
- Shierby v UK (2009): Shireby (man) had been refused the full ‘widows benefit’ when his wife died, He claimed he was discriminated against on the grounds of his gender. - ECHR article concerned with article 14 (anti-discriminateion on the grounds of sex)
The appeal was allowed. Uk law effectively changed.
- McDonnell v UK (2014): Mcdonell was a northern ireland terrorist suspect who died in custody in 1996. There was a delay of 17 years before the inquest into his death - ECHR article concerned with article 2 (the right to life).
The appeal succeeded. McDonnell’s mother was awarded 18,000 in euros in cost and damages.
NJDB V UK (2015): NJDB appealed a decision to not grant him legal aid for his child custody case. ECHR article concerned with Article 6 (right to a fair trial and fair access to justice). The appeal was refused.
Voting rights for Uk prisoners (2015). A group of over 1,000 prisoners appealed against a ban on their right to vote. Article 3 (right to a free election).
The appeal was allowed but the UK government has refused to comply with the ruling, quoting the sovereignty of parliament.
